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Queen's University
 

Bhinder

How do you determine if a workplace rule that discriminates against religious minorities constitutes a bona fide occupational requirement?

Facts

In 1974, Bhinder was employed by Canadian National Railway Co. (C.N.) to work as a maintenance electrician in the Toronto coach yard. Fours years later, C.N. introduced a rule requiring all employees working in the coach yard to wear a hard hat for safety reasons. Bhinder, however, was a Sikh and was therefore prohibited by his faith from wearing any other head covering than a turban. The employer refused to make an exception for Bhinder, who was dismissed in December, 1978. A Canadian Human Rights Tribunal found, in 1981, that C.N. had discriminated against Bhinder. Two years later, a Federal Court of Appeal overturned the Tribunal's finding, ruling that the requirement to wear a hard hat was a bona fide occupational requirement.  In 1995, the case went before the Supreme Court of Canada. [Canadian National Railway Co. v (Canada) Human Rights Comm.) and Bhinder (1985) 7 C.H.R.R. D/3093 (S.C.C)]

Questions

  1. Is the hard hat rule a bona fide occupational requirement?
  2. Did the rule discriminate against Bhinder on religious grounds?
  3. Is the rule considered to be a discriminatory practice?
  4. Did C.N. have a duty to accommodate Bhinder?

Rulings

  1. Yes, according to the majority.
  2. Yes, according to the majority.
  3. No, according to the majority.
  4. No, according to the majority.

Reasoning:

  1. The hard hat rule was made in good faith, was related to the operation of the business, and was reasonably necessary because it increased the safety of all workers in the coach yard.
  2. The rule, which was neutral on its face, had the effect of adversely discriminating against Bhinder.
  3. Section 14a of the Canadian Human Rights Act states that "it is not a discriminatory practice if any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement". Although the rule discriminated against Bhinder, it was not considered to be discriminatory because it was a bona fide occupational requirement. Speaking for the majority, Justice McIntyre justified this decision by saying that "to apply a bona fide occupational requirement to each individual with varying results, depending on individual differences, is to rob it of its character as an occupational requirement and to render meaningless the clear provisions of s. 14(a).
  4. The majority found that when its requirement is found to be bona fide, the employer has no duty to accommodate the employee against it discriminates.  The minority, however, disagreed.  Dickson C.J and Lamer J, said that section 14a was "never meant to obliterate the duty to accommodate and, in doing so,  diminish seriously protection of the individual from adverse effect discrimination in the Act." They maintained that an occupational requirement that adversely discriminates against a protected group is bona fide if, and only if, "undue hardship would result on the part of the employer if an exception or substitution were to be allowed on the part of the individual affected". In other words, finding a rule to be bona fide does not excuse an employer from accommodating an employee to the point of undue hardship.

note: This decision was repudiated, in part, in Central Dairy Pool (1990). The test for undue hardship was redefined in Meiorin (1999)

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000